October 26, 2020

When do Americans with dementia have the 'capacity to vote'?

Daily Briefing

    Americans with some form of dementia represent nearly 2.5% of the U.S. population old enough to vote—and amid one of the most contentious presidential elections in modern history, experts say many still have the capacity to vote if they choose to do so.

    The 2020 elections—and what it means for health care

    Americans with dementia account for a sizeable share of likely voters—but could face challenges

    Almost six million people in the United States have some form of dementia, according to CDC estimates. Not only do such individuals make up nearly 2.5% of the U.S. population old enough to vote, but Americans with some form of dementia also typically are among the most likely group of Americans to do so: those ages 60 and older.

    Observers have noted that all older Americans may face difficulties voting this year amid America's coronavirus epidemic, especially if they live in assisted-living facilities and nursing homes. Older Americans face a higher risk from Covid-19, the disease caused by the virus, than younger individuals, and public health experts therefore recommend that seniors take strict precautions to avoid contracting the virus, including limiting their exposure to others.

    But Americans with dementia could face even greater challenges, as some observers and caretakers may question whether such individuals retain their so-called "capacity to vote," the New York Times' "The New Old Age" reports. Further, some observers have expressed worry that votes cast by individuals with dementia may actually support the views of the person assisting them in voting—not the views of the voters, themselves.

    Do Americans with dementia have the 'capacity to vote'?

    But having a dementia diagnosis doesn't revoke a person's right to vote, experts say.

    Charles Sabatino, director of the American Bar Association Commission on Law and Aging, explained, "There are many misperceptions of what 'capacity to vote' is. … Incapacity to follow a recipe and cook dinner doesn't mean incapacity to vote. The inability to remember your grandchildren's names doesn't mean you can't vote."

    For instance, Beth Kallmyer, VP of care and support for the Alzheimer Association, said that, when it comes to individual with Alzheimer's disease, the "disease is progressive, and it evolves over many years." As such, "A person in the early stages, and even into the more moderate stages, still has the capacity to vote."

    Kallmyer noted that there is a possibility that a person with advanced dementia may reach a point when they're no longer able to understand the act of voting. However, she said, "the reality is they can understand for a really long time, particularly people who have voted their whole lives. This is something they've done, something they can put context around. They might need a little bit of assistance, but there are voting laws to support that."

    In addition, Nina Kohn, an elder law specialist at the Syracuse University College of Law, said there's not much evidence of voter fraud occurring in nursing homes, JAMA reports.

    Should caretakers help individuals with dementia vote?

    Overall, Jason Karlawish, a professor of medicine and medical ethics and a senior fellow at the Center for Bioethics at the University of Pennsylvania who co-directs the university's Penn Memory Center, said he believes that if an individual with dementia "want[s] to vote, they should be allowed to vote."

    Kohn explained that, "short of a court determination that an individual lacks the capacity to vote, an individual has the right to vote." Further, she added, "[n]ursing homes that take federal money have a duty to support residents' rights and their exercise of the rights as citizens of the United States."

    Kohn recommended that, to ensure patients with dementia in nursing homes are able to vote, physicians caring for those patients should ask the patients if they'd like to vote and document their answers in their medical records. "We know that physicians' notes are a really key way of communicating with staff," she said.

    Kallmyer also suggested that family members ensure relatives in nursing homes have the opportunity to vote. "I would suggest they call the nurse that they work with, or the administrator, [and tell them] 'my father lives there, and he's always voted, and he wants to vote this year,'" she said.

    But Karlawish and Kohn also noted that there may be instances in which a vote from a person with dementia shouldn't be cast.

    According to Karlawish, a person's functional capacity should be the only factor considered when determining if he or she is able to vote. If a person needs help with reading or filling out a ballot, he or she should get that assistance and be able to cast his or her vote. However, if a person cannot communicate his or her ballot choices with assistance, his or her vote should not be cast.

    Likewise, Kohn cautioned that "[i]f an individual cannot express a voting preference, then any vote by that person is not really a vote by that person." Kohn added that she believes "[y]ou can't vote for somebody else even if you're extremely confident how that individual would vote."

    However, that doesn't mean patients must be able to "name the candidates or explain the issues" without assistance, "The New Old Age" reports, and ballots can be completed with assistance over the course of several days. The patients' ballots also can be submitted incomplete, meaning they could vote in just the presidential or another race and leave everything else on the ballot blank.

    Simply put, Sabatino said, "Ask them their choices and see if they answer. … If they do, they vote"— and that means they vote with whatever answer they provide. "If they tell you they want to vote for [Franklin Delano Roosevelt (FDR)], you write in FDR," Sabatino said.

    Karlawish explained, "You may find it disturbing to write in someone odd, but we let people do that," particularly because there are no standards that stop voters without cognitive conditions from writing in random or fictious candidates or from simply selecting candidates on the ballot at random. "We can't hold certain people to standards that we don't hold everyone else to, when it's a matter of a fundamental right" (Rubin, "Medical News & Perspectives," JAMA, 9/30; Span, "The New Old Age," New York Times, 10/14).

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